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What are the restrictions on using ESTA visas during EB-5 processing?

The USCIS has just approved my EB-5 petition two weeks ago. I am now waiting for NVC''s procedures, including consular actions. However, I would like to visit my older sister as soon as possible, as she has been suffering from lung cancer. Would it cause any problem to enter the United States with an ESTA visa during this time (before the interview) to visit my sister for few days? Specifically, would U.S. Immigration and Customs Enforcement (ICE) raise any issue upon entry before I have finalized EB-5 procedures? If so, would it help to carry any official documents (such as medical certificates) from the hospital?

Answers

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    Irina Lust

    Immigration Attorney
    Answered on

    You can travel on an ESTA. However, you may be questioned at the time of entry about your intent. You need to show all the medical records for your sister regarding her condition and other documents proving this is just a temporary trip and you will return to your home country.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    You may have difficulty traveling on a Visa Waiver Program if you have an approved I-526 petition. You should have medical records or a letter from your sister''s oncologist evidencing you are visiting your ailing sister as well as evidence of ties to your home country (such as work, relatives, property, etc.). CBP will know you have an approved I-526 petition. If you chose consular processing on I-526 petition, you should clearly state that you intend to go back after a brief visit with your sister in the U.S. and consular process for an immigrant visa abroad. However, one always has certain immigration risks involved when traveling on a VWP or tourist visa with an approved immigrant petition, such as cancellation of VWP or, the worst-case scenario, an expedited removal. You should weigh these risks with your immigration attorney before travel.

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    Charles Foster

    Immigration Attorney
    Answered on

    Yes. It is possible to enter the U.S. under the Visa Waiver Program or ESTA, but it is risky. Every visitor to the United States must prove their intentions to the U.S. Immigration Inspector even if they do not intend to immigrate to the U.S. The fact you are the beneficiary of an approved EB-5 Investor''s Petition is compelling evidence that you do intend to immigrate to the U.S. That information will be available to the U.S. Immigration Inspector at the airport when he looks at the computer. Thus, when you arrive in the U.S., you must say that you are coming to the U.S. temporarily for whatever purpose (i.e. that you have such as to visit family or have a medical appointment). But, when asked about your EB-5 petition, you must always tell the truth and say you do intend to immigrate on a long-term basis but, on an immediate short-term basis, that you would like to just visit the U.S. It is possible under those circumstances that the US Immigration Inspector will admit you to the U.S. However, remember it is purely discretionary. It is possible, if not somewhat probable, you will be denied entry when you get to the airport and have to return on the next flight back home.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    No, entering on ESTA should not affect your long-term goal of permanent residence if your purpose for entering is, for the moment, purely temporary and you intend to depart after the visit. Immigration/ICE may ask questions regarding your pending application or immigrant intent, but as long as you can show the specific nature/intent of your current visit and support your temporary intent, you should be fine.

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    Mitch Wexler

    Immigration Attorney
    Answered on

    There is no prohibition on seeking entry pursuant to the ESTA program either while an I-526 is pending or after it is approved. However, one must be cognizant of an ICE (Immigration and Customs Enforcement) Inspector checking the computer and seeing you are far along in the green card process. This is a critical issue you must be prepared for, though not necessarily fatal to your immigration process. We have not seen anyone being turned away due to this, but you should be armed with evidence of your permanent residence abroad, a job abroad, assets abroad and, in your case, medical evidence of your sister’s condition and a return ticket home. It is likely you will not need to show any of this, but it is better to be prepared in case they challenge your entry. The fact of the matter is you will clearly be departing the U.S. for no other reason than to attend your immigrant visa interview in a few months. So, there is no real risk in admitting you. However, this may be too logical for an inspector to appreciate. Of course, keep in mind that current policies can change with little notice, especially with the current Administration.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    The ESTA is evidence of entry into the U.S. through the Visa Waiver Pilot program. It is not a substitute for an approved travel document. If you have an approved EB-5 visa, it is advisable to seek approval for a legitimate travel document. Consult your immigration attorney for further guidance.

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    Jon Eric Garde

    Immigration Attorney
    Answered on

    If you need to enter the United States immediately and your immigrant processing cannot be finalized in time, you can enter the United States explaining your emergency need, with evidence of your ongoing need to return to your home country, notwithstanding your longer-term objectives to immigrate to the United States. Think this through and document all aspects of these mixed motivations. If you need assistance, please reach out to an experienced attorney.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    There are no restrictions. You would be smart to bring documents showing the legitimate temporary reason for the visit and a return airline ticket.

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    Ian E Scott

    Immigration Attorney
    Answered on

    If you have an approved ESTA and plan to enter the U.S., Customers and Border Protection could raise an issue. However, you may not have any issues if you can explain the nature of your visit, have evidence to show the purpose of the visit and say that you plan to return to your home country to consular process.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    ESTA should be OK, as you need to return overseas to complete immigrant visa processing. Yes, bring medical records for your sister, as it might be necessary. If asked about your visit, say you are visiting and returning overseas to complete your immigrant visa processing.

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